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JustWarTheory.com is a free, non-profit, critically annotated aid to philosophical studies of warfare. It is owned and maintained by Mark Rigstad, Associate Professor and Chair of Philosophy at Oakland University (a "Military Friendly School") that offers in-state tuition to all U.S. military veterans.

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RECENT UPDATES (as of 6/5/13): Anscombe on war and murder; Fabre on Kamm's Moral Target; Van der Linden reviews Williams on Kant; McMahan on rethinking JWT; Brunstetter on just drone warfare; Moyn reviews Dudziak; Cunliffe on humanitarian intervention; Pape on suicide terrorism; Crenshaw on suicide terrorism; Nussbaum on Kant's cosmopolitanism; New section on jus post bellum; Anderson on drones; Kanwar on drones; Crawford on cosmopolitan liberty in an age of terrorism; De Londras on counterterrorism internment; UNHRC on Libya's record of human rights violations; Morganthau's realpolitik; Hoff reviews Blum and Heymann on the war on terrorism; Teson on authority in humanitarian intervention ...

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INTRODUCTORY MATERIALS:

CLASSIC SOURCES:

  • The Just War Tradition: Every educated citizen should reflect on the pre-modern, proto-modern, and modern classics of the just war tradition. Follow these links to read Francisco de Victoria's classic relectiones (1557) "On the Indians" and "On the Law of War"), Hugo Grotius's erudite and systematic masterpiece on the The Laws of War and Peace (1625), Book X of Charles de Secondat, Baron de Montesquieu's The Spirit of Laws (1748), Emmerich de Vattel's treatise on the Law of Nations (1758), and Immanuel Kant's essay on "Perpetual Peace" (1795). Just war theory is typically considered to be an essential rights-based or deontological theory. Yet, as we have defined it here -- as the attempt to distinguish between ethical justifiable and unjustifiable uses of organized armed forces -- one might take a utilitarian approach to just war theory instead. Consider, for example, Jeremy Bentham's treatment of war. Among more recent works, G. E. M. Anscombe's "War and Murder" is a seminal classic, and Thomas Nagel's "War and Massacre", Philosophy and Public Affairs, Winter 1972, is a classic Vietnam-era philosophical argument for principled moral restraint in warfare. Murray Rothbard sketches a libertarian approach in his essay on "Just War," Ludwig von Mises Institute, 1994. Michael Walzer's Just and Unjust Wars (1977) is the consensus favorite to join the pantheon of modern classics in just war theory. The Carnegie Council has published a transcript of Walzer's general lecture with Q&A about his more recent book, Arguing about War. (Updated 5/28/11) In "Responsibility and Proportionality in State and Nonstate Wars," Parameters: US Army War College Quarterly, Spring 2009, Vol. XXXIX, No. 1, Walzer argues that assignments of responsibility for creating risks of harm to innocent civilians take priority over judgments about the proportionality or disproportionality of the harms that they suffer (e.g. in Gaza, etc.). (Added 11/16/09)
  • Jeff McMahan's work in the field of just war theory systematically works out an alternative to Walzer's approach. Here is his video keynote address on the subject of pacifism for the 2nd On-line Philosophy Conference (OPC2) on May 21, 2007. (Added 5/30/07) And here are online versions of some of his articles: "Innocence, Self-Defense & Killing in War," The Journal of Political Philosophy 2, no. 3 (September 1994): 193-221; "Revising the Doctrine of Double Effect," The Journal of Applied Philosophy 11, no.2 (1994): 201-212; "Intervention and Collective Self-Determination," Ethics and International Affairs 10 (1996): 1-24; "War as Self-Defense," Ethics and International Affairs, 18, no. 1 (Winter 2004): 13-18; "Unjust War in Iraq," The Pelican Record, Volume XLI, Number 5, December 2004; "Preventive War and the Killing of the Innocent," in David Rodin and Richard Sorabji, eds., The Ethics of War: Shared Problems in Different Traditions (Aldershot, UK: Ashgate Publishing, 2005): 169-90; "Just Cause for War," Ethics and International Affairs 19, no. 3 (2005): 1-21.; "Torture, Morality, and Law," Case Western Reserve Journal of International Law, 37, nos. 2 & 3 (2006): 241-48; "Killing in War: a Reply to Walzer," Philosophia 34 (2006): 47-51; "Liability and Collective Identity: A Response to Walzer," Philosophia 34 (2006): 13-17; "On the Moral Equality of Combatants," Journal of Political Philosophy 14, no. 4 (2006): 377-93; "Collectivist Defenses of the Moral Equality of Combatants," Journal of Military Ethics 6, no. 1 (2007); "Just War," in Robert E. Goodin, Philip Pettit, and Thomas Pogge, eds., A Companion to Contemporary Political Philosophy, 2nd edition (Oxford: Blackwell, 2007); "The Sources and Status of Just War Principles," Journal of Military Ethics 6, no. 2, special issue: "Just and Unjust Wars: Thirty Years On" (2007): 91-106; "Precis of The Morality and Law of War," Israel Law Review 40, no. 3 (October 2007); "Contrasting Approaches to War: Some Thoughts on the Views of Fletcher, Segev, Shany, and Zohar," Israel Law Review 40, no. 3 (October 2007); "The Morality of War and the Law of War," in David Rodin and Henry Shue, eds., Just and Unjust Warriors: The Legal and Moral Status of Soldiers (Oxford: Clarendon Press, 2008); "Justification and Liability in War," Journal of Political Philosophy 16, no. 2 (2008): 227-44; Torture in Principle and in Practice," Public Affairs Quarterly 22 (2009): 111-128; "War, Terrorism, and the 'War on Terror'," in Christopher Miller, ed.,"War on Terror": The Oxford Amnesty Lectures 2006 (Manchester: Manchester University Press, 2009); "War, Terrorism, and the 'War on Terror'," in Christopher Miller, ed.,"War on Terror": The Oxford Amnesty Lectures 2006 (Manchester: Manchester University Press, 2009); "Humanitarian Intervention, Consent, and Proportionality," in N. Ann Davis, Richard Keshen, and Jeff McMahan, eds., Ethics and Humanity: Themes from the Philosophy of Jonathan Glover (New York: Oxford University Press, 2009); "Laws of War,"in Samantha Besson and John Tasioulas, eds., The Philosophy of International Law (Oxford: Oxford University Press, 2009); "Torture and Collective Shame," in Anton Leist and Peter Singer, eds., Coetzee and Philosophy (New York: Columbia University Press, 2009); "The Morality of Military Occupation," Loyola International and Comparative Law Review (2009); "Self-Defense Against Morally Innocent Threats," and "Reply to Commentators," in Paul H. Robinson, Kimberly Ferzan, and Stephen Garvey, eds., Criminal Law Conversations (New York: Oxford University Press, 2009); "Hobbesian Defenses of Orthodox Just War Theory," in Sharon Lloyd, ed., Hobbes Today (forthcoming); & "Intention, Permissibility, Terrorism, and War," Philosophical Perspectives (forthcoming). (Added 11/16/09)
  • It is sometimes said that just war theory originates from a Catholic tradition that can be traced to the writings of Thomas Aquinas and Augustine of Hippo. Although these figures and the traditions of thought associated with them are highly important and influential (See James Turner Johnson's overview), any sectarian expropriation of just war theory is historically unsupportable. Many pre-Christian thinkers -- including Plato, Aristotle, Cicero, Cato the Younger, Seneca, Polybius and Sallust, to name but a few -- distinguished between just and unjust grounds for waging war, and between just and unjust conduct in the course of war. An examination of Grotius' reference materials (this task requires some reading as none of the online editions include an index) is a good guide to the full diversity of ancient, medieval and Renaissance sources, not all of which are products of Christian theology. Relevant biblical passages are found in both the old Hebrew scriptures and the Christian New Testament, which means that just war theory belongs (in part) to a broader Judeo-Christian tradition. Although the history of mutual theological infuences is a complex affair, contemporary Judaic approaches to just war thinking are often developed in terms that are largely if not completely independent of explicit reliance upon Christian sources. Michael Walzer has voiced doubts about the viability of a Jewish "purity of arms" doctrine that has more to do with the influence of platonism via Philo of Alexandria than with any kind of well developed rabbinical casuistry of war. Even so, Arye Edrei finds a separate source of just war thinking in the efforts of Israel's first chief military Rabbi to "create a modern corpus of Jewish law and ethics relating to war and the military." See Edrei's "Spirit and Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defence Force," Theoretical Inquiries in Law, Vol. 7, 2005-2006, pp. 255-297. Further, although it is seldom recognized in the West, there is also an independent Islamic tradition of just war thinking. For a useful introduction to this tradition, see "Islamic Rulings on Warfare," by Youssef H. Aboul-Enein and Sherifa Zuhur, Strategic Studies Institute, October 2004. (Posted 7/16/06, updated 4/28/07)

  • Look here for the growing number of available online secondary studies of some of the above classic works in the philosophy of peace & war.
  • And this is the place for book reviews of these and other recent works in the field of peace and war studies.

TERRORISM & COUNTERTERRORISM WARFARE: (scroll down for the most recent posts)

  • Look here for book reviews related to the topic of terrorism.
  • The Federation of American Scientists page on America's War on Terrorism contains a number of useful sources of objective data on the topic. (Updated 5/28/11)
  • Igor Primoratz's essay on "State Terrorism & Counterterrorism" (pdf) is available here for downloading from the web.
  • Neta C. Crawford offers an insightful evaluation and critique of America's new "permanent war" in "Just War Theory and Counter-Terror War".
  • Originally published in the March 1992 edition of the Atlantic Monthly, Benjamin R. Barber's "Jihad Vs. McWorld" presents an influential argument contending that both tribalism and globalism threaten democracy and generate terrorism. Timothy Mitchell challenges Barber's account in "McJihad: Islam in the U.S. Global Order," Social Text 73, Vol. 20, No. 4, Winter 2002. (Posted 11/11/05)
  • As the nature of warfare has changed over the course of history, just war theorists have repeatedly been confronted with new and challenging questions. Can a "War against Terrorism" be fought by conventional means? Or, as Rob Elder argues, are rations more effective than bombs against such an enemy?
  • Follow this link to Chief Deputy Attorney General of California Peter Siggins' discussion of the ethics of "Racial Profiling in an Age of Terrorism". (Posted 10/02/04)
  • Davida Kellogg presents a useful critical account of how Guerrilla Warfare invariably leads to the proliferation of war crimes. (Posted 10/20/04) (Updated 5/28/11)
  • Although it hasn't been updated since October 2003, Yale University's Avalon Project houses a useful compendium of internet-available historical documents relating to international terrorism. (Posted 12/29/04)
  • Looking for a scholarly and authoritative attempt to justify the Bush administration's approach to counter-terrorism warfare from a realpolitik ("instrumental") perspective? If so, then look no further than John Yoo's "Using Force" (pdf). Yoo argues that in an age of global terrorism and rogue nations, a "hegemonic power" like the U.S. can serve both its own narrowly conceived national self-interests AND the broader interests of the world community as a whole by acting on more flexible principles of self-defense than traditional just war theories and international conventions allow. How convenient for the hegemon (or would-be hegemon). If this theory were sound, we would find confirming evidence in how stable, secure and happy U.S. counter-terrorism war efforts are making the rest of the world. Yet, most of the international community is opposed to the kind of American exceptionalism that Bush has embraced and that Yoo defends. Yoo could attempt to address this objection by arguing that dissenting peoples and states (uninformed as they are by his theory) are failing to recognize their "real interests". This rejoinder would be essentially a priori and therefore ultimately unconvincing in any sort of reasonable international dialogue. But at least it would lay bare the essential logic of imperialism: Q: Who is the best judge of your interests? A: The hegemon is, that's who, because it is more powerful than you are. (Posted 7/18/04) (For more of Yoo's thought, see the RIGHTS OF ENEMIES section below.)
  • Martin Shaw critically examines the common assumptions of counter-terrorism warfare in his essay, "Risk-transfer militarism and the legitimacy of war after Iraq". See also his Dialectics of War: An Essay in the Social Theory of Total War and Peace. (Posted 11/21/04)
  • In his essay on "Terrorism and the Philosophy of History: Liberalism, Realism, and the Supreme Emergency Exemption", Andrew Fiala critically examines John Rawls' Law of Peoples as it applies to counter-terrorism warfare. (Posted 11/24/04) (Updated 5/28/11)
  • In "Optimal War & Jus ad Bellum, Eric A. Posner and Alan O. Sykes defend the Bush administration's post-9/11 policy of pre-emptive self-defense. They conclude that "There are good reasons for allowing preemptive self-defense, quite possibly without Security Council authorization... The potential proliferation of nuclear weapons and other weapons of mass destruction to rogue states and state sponsors of terrorism provides a rationale for invading dangerous states sooner rather than later." The framework of this approach places too much weight on the "rogue state" designation, which criminalizes enemy states and, accordingly, denies them standard protections of international law. Allowing every state to justify aggression in this manner is a clear recipe for anarchy. It would substitute name-calling and unilateral aggression for the rule of international law. Within any legitimate legal order, there are no criminal persons or states, but only criminal acts. There is no such thing as a rogue nation. There are only roguish acts, such as the promotion of terrorist activities and the unprovoked and harmful invasion of another state. (Posted 12/8/04) (Updated 5/28/11)
  • Cass Sunstein's forthcoming article, "Minimalism at War" (PDF), is now available for dowloading. Abstract: "When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism." Review: Although this is an important piece of constructive jurisprudence, Sunstein arguably does not make a compelling case for his Ginzburg-style piecemeal judge. Perhaps most importantly, his argument does not adequately address the changing character of "wartime". It makes no sense to allow the historically limited wartime provisions of the past to set the constitutional standard for a condition of counter-terrorism which lacks conceivable historical limits. Sunstein also does not adequately defend the assumption that counter-terrorism ought to proceed by more or less conventional methods of warfare (invasion & occupation) rather than by new, multi-lateral, and at most quasi-military methods of international law enforcement (international forces targeting responsible parties for ICC prosecution). Consequently, he too easily dismisses the appropriateness of a principled juridical protection of civil liberties in present-day U.S. constitutional law. Moreover, his Liberty Maximalist is a straw judge. (Posted 12/28/04)
  • Samuel Vaknin's Terrorists and Freedom Fighters, which offers historical analysis of 20th century Balkan conflict, is available for html or richtext dowloading, or online reading, from Project Gutenberg. (Posted 1/23/05)
  • It's worth going back in time and reading or watching The Cato Institute's 11/27/2000 Policy Forum on Terrorism. John Parachini's introductory talk is a catalogue of good advice not taken. He emphasizes diplomacy, international law enforcement and prevention, rather than knee-jerk military action. In contrast, Anthony Cordesman is skeptical of, among other solutions, any kind of legal internationalism, though he is open to unsavory alliances with "repressive intelligence services"... (Posted 1/25/05)
  • Edmund Santurri examines the moral evaluation of terrorism in "Philosophical Ambiguities in Ostensibly Unambiguous Times" (pdf) -- courtesy of the author and The Journal of Peace and Justice Studies, Vol. 12, No. 2. (Posted 2/2/05)
  • "Breathing Easier?" (pdf), is a downloadable empirical report from the Century Foundation Working Group on Bioterrorism Preparedness. (Posted 2/2/05)
  • Chalmers Johnson's "Blowback," The Nation September 27, 2001, argues that "World politics in the twenty-first century will in all likelihood be driven primarily by blowback from the second half of the twentieth century -- that is, from the unintended consequences of the Cold War and the crucial American decision to maintain a Cold War posture in a post-Cold War world. The United States likes to think of itself as the winner of the Cold War. In all probability, to those looking back a blowback century hence, neither side will appear to have won, particularly if the United States maintains its present imperial course." (Posted 3/06/05)
  • Mark Tushnet's "Defending Korematsu?: Reflections on Civil Liberties in Wartime" is available here for downloading. It argues that the historical pattern of U.S. governance typically involves over-reaction to national security concerns, adoption of bad solutions that abrogate civil liberties, and expressions of judicial remorse in hindsight. Unlike Sunstein (above), Tushnet acknowledges that the dangers of terrorism constitute a longstanding "normal" security condition, not an episodic state of emergency. Accordingly, a "categorical" approach to the protection of civil liberties is more appropriate than a "balancing" approach that would too readily trade liberty for security. (Posted 4/5/05)
  • Janna Thompson's essay, "Is There Such a Thing as a Rogue State" (pdf) is available for downloading from the excellent Working Papers Series of the Australian Research Council's Centre for Applied Philosophy and Public Ethics. (Posted 4/8/05)
  • Noam Chomsky's 11/16/2004 lecture, 'Illegal, but Legitimate: A Dubious Doctrine for the Times' is available for viewing as a QuickTime video (1:17:44) from Columbia University's Earth Institute. (Posted 4/11/05)
  • Does Poverty Cause Terrorism? According to Alberto Abadie's 'Poverty, Political Freedom, and the Roots of Terrorism' (National Bureau of Economic Research) "the risk of terrorism is not significantly higher for poorer countries, once other country-specific characteristics are considered." (Posted 5/9/05)
  • Peter Golding's "The Transformation of Counter Terrorism" (pdf), from the U.S. Army War College Research Project, April 2002, is worth reviewing. Golding's two main arguments against referring prosecutions for 9/11 terrorist crimes against humanity to the International Criminal Court (ICC) are (1) that the ICC does not exist because only 42 of the required 60 signatory nations have ratified the Rome Statute, and (2) that the ICC is unlikely to adopt the death penalty. More than three years later, (2) remains true. And yet, as Golding notes, even the U.S. has been reluctant in the past to use the death penalty against political terrorists on grounds that doing so makes martyrs of them. As for reason (1) for repudiating the authority of the ICC, it effectively evaporated by July of 2002 when the Rome Statute (pdf) went into effect. Now U.S. policy, and the reluctance of the U.S. Senate to ratify the Rome Treaty that President Clinton signed in 1998, are the primary obstacles to the international legal prosecution of terrorist crimes against humanity. (Posted 5/17/05)
  • James Turner Johnson's "Jihad and Just War" argues that versions of "radical jihad" which purport to justify terrorism are out of line not only with western just war thinking but also with Islamic tradition. (Posted 6/11/05)
  • Jeremy Shapiro and Benedicte Suzan examine 'The French Experience of Counter-terrorism' (pdf), Survival, vol. 45, no. 1, Spring 2003, pp. 67-98. (Accessed 7/11/05 from MetaFilter)
  • Samuel P. Huntington's 'The Clash of Civilizations' (Foreign Affairs, Summer 1993) is now available from Alamut.com. (Posted 7/16/05) In a more recently published Slate magazine e-mail exchange (May 2006), Robert Kagan and Amartya Sen discuss the shortcomings and merits of the Huntingtonian vision of contemporary global politics. (Posted 7/21/05)
  • In his own unique version of the clash-of-civilizations thesis, Rene Girard characterizes the global interplay of terrorism and counter-terrorism (or, better, reciprocal terrorisms) as 'Mimetic Rivalry on a Planetary Scale'. (Posted 7/16/05)
  • There are a number of game-theoretic analyses of terrorism available on the internet, including the following: 'Terrorism and Game Theory' (pdf), by Todd Sandler and Daniel G. Arce, Simulation and Gaming Vol. 34 (3) September 2003; and 'Terrorism and Game Theory: Coalitions, Negotiations and Audience Costs' (pdf), by C. Maria Keet. (Posted 7/18/05)
  • Thomas R. O'Connor hosts a large criminology website, which includes a survey of The Criminology of Terrorism. (Posted 7/22/05)
  • Amitai Etzioni argues that nuclear deproliferation should be the "first priority" of counter-terrorism. "The main danger many nations face in the near future is a nuclear attack by terrorists. Attempts to defend against it by hardening domestic targets cannot work, nor can one rely on pre-emption by taking the war to the terrorists before they attack. Hence, there is an urgent need to limit greatly the damage that terrorists will cause by curbing their access to nuclear arms and the materials from which they can be made..." Click here to download the rest of Etzioni's detailed report on 'Pre-Empting Nuclear Terrorism in a New Global Order' (pdf). (Posted 7/27/05)
  • In the best of all possible worlds, every academic journal would be available online, free of charge -- just like the Philosophy and Public Policy Quarterly. In recent years, Phil Pub Pol Quart has published some of the best philosophical work on counter-terrorism warfare, including the following: "The Perils of Preemptive War" by William A. Galston; "Is Development an Effective Way to Fight Terrorism?" by Lloyd J. Dumas; "The Paradox of Riskless Warfare" by Paul Kahn; "The War on Terrorism and the End of Human Rights" by David Luban; "The Realist Illusion, a Patriarchal Reality, and the Plight of Osama the Pirate" by Robert Hunt Sprinkle; "The Ethics of Retaliation" by Judith Lichtenberg; & "Terrorism, Innocence, and War" by Robert K. Fullinwider. (Posted 8/15/05)
  • Carl Conetta, Charles Knight and others at PDA, theProject on Defense Alternatives, have compiled and continue compile an exceedingly useful collection of strategy studies on, among other topics, Terrorism, Counter-Terrorism, Homeland Security. (Posted 9/23/05)
  • The Counterterrorism Blog, founded and edited by Andrew Cochran, is self-described as "The first multi-expert blog dedicated solely to counterterrorism issues, serving as a gateway to the community for policymakers and serious researchers." It's a good resource for keeping abreast of the inside-the-beltway view of Islamist political violence. (Posted 9/30/05) (Discontinued as of 3/11/11)
  • In his essay on "The Mind of Terrorism", Jean Baudrillard suggests that "the terrorist imagination . . . dwells within us all" and the war on terror is "a continuation of the absence of politics by other means." (Posted 10/31/05)
  • Check out "Just War, Humanitarian Intervention and Equal Regard: An Interview with Jean Bethke Elshtain," by Alan Johnson of Democratiya, September 1, 2005. Elshtain is the author of Just War Against Terror: The Burden of American Power in a Violent World, Basic Books, 2003 & Women and War, Basic Books, 1987. (Posted 11/18/05)
  • In "Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?", Theoretical Inquiries in Law 7(1), 2005, Dan Belz critically examines advocacy of humanitarian law as a means of counter-terrorism from the standpoint of an economic theory concerned with the "audience costs" and "negative externalities" of law. (Posted 12/23/05)
  • Thomas Franck addresses the issues of legal theory pertaining to "Preemption, Prevention and Anticipatory Self-Defense" in this video lecture from San Diego State University's Institute of Ethics and Public Affairs, February 19, 2004. (Posted 1/7/06)
  • In "Defining a Just War," The Nation, October 29, 2001, Richard Falk argues that "The perpetrators of the September 11 attack cannot be reliably neutralized by nonviolent or diplomatic means; a response that includes military action is essential to diminish the threat of repetition, to inflict punishment and to restore a sense of security at home and abroad. . . [and yet] . . . Unlike in major wars of the past, the response to this challenge of apocalyptic terrorism can be effective only if it is also widely perceived as legitimate. And legitimacy can be attained only if the role of military force is marginal to the overall conduct of the war and the relevant frameworks of moral, legal and religious restraint are scrupulously respected." Falk's analysis of how our handling of the Israeli-Palestinian conflict has exacerbated the problem of terrorism appears online in "Ending the Death Dance", The Nation, April 29, 2002. Ron Radosh responds unsympathetically in "A New Low for The Nation", FrontPageMag.com, April 19(?), 2002. (Posted 1/15/06)
  • Paul Treanor has petitioned the European Parliament "to legalise terrorism, and to assess each case of political violence separately" on grounds that present European law systematically favors the violence of status quo maintenance over the violence of political change. (Posted 1/19/06)
  • The Federation of American Scientists offer useful analyses of agricultural biowarfare and bioterrorism and so much more. (Posted 1/20/06)
  • Olga Kallergi argues that "the war against terrorism can be won without sacrificing our legal ethics" in "Exporting U.S. Anti-Terrorism Legislation and Policies to the International Law Arena, a Comparative Study: the Effect on Other Countries' Legal Systems." (Posted 1/26/06)
  • In "Legal Lines in Shifting Sand: Immigration Law and Human Rights in the Wake of September 11," Daniel Kanstroom outlines a pragmatic, consensus-based approach to the following legal issues in our counter-terrorism practices: "government disclosure and the public's right to know; the deportation system's habeas corpus practices; racial profiling; the convergence of immigration and criminal law since the attacks; judicial review of military detentions at Guantanamo Bay and elsewhere; and noncitizens' rights in the United States and the European Union." (Posted 1/26/06)
  • Vanda Felbab-Brown examines the connection between international drug trade and political violence in "A Better Strategy Against Narcoterrorism," MIT Center for International Studies Audit of the Conventional Wisdom, January 2006. (Posted 2/9/06)
  • Benjamin H. Friedman helps to put into perspective the menace of terrorism and the cost of protecting ourselves against it in "The Hidden Cost of Homeland Defense," MIT Center for International Studies Audit of the Conventional Wisdom, November 2005. (Posted 2/9/06)
  • "Good Lives, Bad Lives" is the first chapter of Ted Honderich's book, After the Terror(2002), a sustained philosophical reflection on terrorism. See the JWT Book Reviews page for Richard Wolin's review and Honderich's reply to Wolin. There has also been some extra-curricular controversy surrounding Honderich's book. In this first chapter he argues that "History is a proof that peoples demand the freedom that is their running of their own lives in a place to which their history and culture attaches them. It is a freedom for which oppressed people have always fought. It is a freedom such that a threat against it in 1939 united almost all of us against Germany. It has been denied to the Palestinians. . . Palestinians have been denied by their enemy exactly the right of a people that has been secured and defended by that enemy for itself. . . The terrible inconsistency is plain to all who are unblinded, plain to very many Jews in and out of Israel. No hair-splitting will help. It is as plain to those of us who also see that it was a moral necessity after the second world war that the Jews come to have a homeland, in Palestine if not elsewhere." (First posted 1/10/05, updated 2/23/06)
  • Alan Johnson argues that "The fact is we are not engaged in a 'war on terror', any more than World War Two was a 'war on blitzkrieg'. We are engaged in a conflict with Totalitarian Political Islam and our enemy uses not only terror but also 'popular' riot, electoral politics, and ideological warfare." His essay, "Camus' Catch: How Democracies Can Defeat Totalitarian Political Islam," recommends a form of democratic internationalism as the key component of a workable political solution. (Posted 3/16/06)
  • In "The Israel Lobby and U.S. Foreign Policy," John J. Mearsheimer and Stephen M. Walt argue that "saying that Israel and the US are united by a shared terrorist threat has the causal relationship backwards: the US has a terrorism problem in good part because it is so closely allied with Israel, not the other way around." This long and detailed study of the impact of pro-Israel lobbying on U.S. security interests is also available in abridged form. (Posted 3/23/06)
  • Robin Frost's "Nuclear Terrorism Post-9/11: Assessing the Risks," Global Society, Vol 18, No 4, October 2004, is available as a sample upon request from Routledge. (Posted 3/25/05)
  • In this December 2004 video (RealPlayer), Alan Krueger presents a lecture entitled, in the manner of presidential locution, "Misunderestimating Terrorism: Economics and the Roots of Terrorism". Available from Princeton WebMedia. (Posted 4/24/06)
  • In "The Crusader", a review of Messages to the World: The Statements of Osama bin Laden (edited by Bruce Lawrence and translated by James Howarth), Khaled Abou El Fadl provides insight into the worldview of America's elusive enemy and argues that we have unwisely bolstered its credibility. (Posted 5/17/06)
  • Richard J. Goldstone and Janine Simpson remind us of "the important link between peace and prosecution by an impartial court" in "Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism," Harvard Human Rights Journal, Volume 16, 2003. (Posted 5/21/06)
  • James Roper uses rational choice theory to show that American's exaggerate the risk of terrorism in "Probability and Risk Assessment: Taking a Chance on 'Terrorism'," Florida Philosophical Review, Vol. II, issue 2, Winter 2002. (Posted 5/21/06)
  • In "Optimal Liability for Terrorism," Darius Lakdawalla and Eric Talley offer a game-theoretic analysis to show that "the September 11 Victims' Compensation Fund waswell-conceived, but may not have gone far enough to preclude opt-out tort claims." (Posted 6/1/06)
  • In "Before and After 9/11," Ars Disputandi, Volume 6, 2006, Tom Rockmore challenges the notion that 9/11 radically altered the shape of global society. (Posted 6/22/06)
  • Question: How difficult would it be for terrorists to smuggle radioactive materials across U.S. borders? Answer: Not very difficult at all. The proof is in this interesting report of the U.S. Government Accountability Office (GAO). (Posted 7/12/06)
  • Anna Goppel's "Defining 'Terrorism' in the Context of International Law", Centre for Applied Philosophy and Public Ethics, Working Paper 2005/1, proposes set of requirements that a useful international definition ought to meet and defines terrorism accordingly. (Posted 7/13/06)
  • Allen Buchanan's outstanding and important "Institutionalizing the Just War" is publicly available online for a limited time, thanks to the IPT Beacon. I include it in this section because it addresses the issue of preventive military force in the global war on terror. "The debate has proceeded within the confines of a rarely stated framing assumption: that the key question is whether to abandon the JWN [Just War Norm "according to which war is permissible only in response to an actual or imminent attack"] in favor of a more permissive norm regarding the use of force. I shall argue that the assumption that the choice between competing norms is mistaken. The proper choice is between adherence to the JWN and the creation of new institutions that would allow for a more permissive norm. Not just alternative norms but also alternative combinations of norms and institutions need to be evaluated." Buchanan also addresses the issue of whether and under what institutional conditions interventive wars of "forced democratization" may be justifiable; so, it also belongs in the following section (though you won't find it there). I strongly agree with Buchanan's general claim that just war theory, broadly construed as ethical theorizing about the restraint of warfare, cannot simply invoke a priori intuitive principles, but must consider possibilities for normative change that might follow from changes in global institutions. But I'm not convinced by the suggestion that we can achieve adequate institutional restraints in the absence of an authoritative global juridical body like the ICC. There is, of course, no a priori reason for thinking that human rights will be protected best by the ICC as currently established. But what global system of checks and balances can adequately restrain putatively preventive and democratizing wars in the absence of juridical institutions for the enforcement of international human rights law? It sounds like a good start to require that perpetrators of unjust regime changes "must bear a greater proportion of the costs of the war and of post-war reconstruction and / or have less of a say in how the reconstruction is carried out." But why not also add courts of universal jurisdiction to the mix? (Posted 7/30/06)
  • Check out Robin Frost's reasoned assessment of "Nuclear Terrorism Post-9/11: Assessing the Risks," Global Society, Volume 18, Number 4, October 2004. Registration required for free access. (Posted 8/16/06) (Updated 5/29/11)
  • In "The Failures of Just War Theory: Terrorism, Harm & Justice" (2003), F. M. Kamm critically examines the doctrine of double-effect and specifies conditions under which terrorism may be justifiable. (Posted 9/3/06) (Updated 5/29/11)
  • In "Pyrrhus on the Potomac: How America's post-9/11 wars haveundermined US national security," Project on Defense Alternatives Briefing Report, number 18, September 5, 2006, Carl Conetta argues persuasively that "measured in the coin of long-term security and stability, post-9/11 policy has cost more than it has gained." (Posted 9/8/06)
  • Is the "hunt" for Osama bin Laden a ruse? Michel Chossudovsky argues that it is in "Where was Osama on September 11, 2001?," Center for Research on Globalization, September 9, 2006. (Posted 9/14/06)
  • The latest buzzword for bipartisan collaboration in counter-terrorism is "Energy Security," which is increasingly conceived as requiring U.S. independence from foreign oil, but especially from "rogue nation" oil. This means that we can effectively resist terrorism by developing biofuels and other alternative energy sources; but it also means that one of the American casualties of the war on terror may be the Alaskan National Wildlife Refuge. (Posted 9/22/06)
  • In "How to Deal with Terrorism," The Economists' Voice, Vol. 3: No. 7, Article 4, 2006, Bruno S. Frey argues that "terrorism has been fought in the wrong way. Instead of focusing on deterrence and preemptive strikes, we should: (1) Reduce vulnerability by decentralizing society; (2) Strengthen positive incentives to leave the terrorist camp; and (3) Divert media attention from terrorist groups." Registration with this journal is free. (Posted 10/10/06)
  • In "Peace Cops? Christian Peacemaking and the Implications of a Global Police Force," Sojourners Magazine, March 2006, Tobias Winright explores the prospects for Christian participation in a globalized "community policing" approach to counter-terrrorism. Thanks to Tobias for sharing the link. (Posted 10/20/06)
  • Kenneth Anderson outlines a congressional agenda for counter-terrorism legislation in "Law and Terror," Policy Review, volume 139, October/November 2006. The judiciary can only be expected to play a marginal role in the task of specifying the limits of executive power, and so far the legislative branch has offered very little in the way of clear and effective checks and balances. (Posted 10/21/06)
  • C. A. J. Coady's "Defining Terrorism," from Terrorism: The Philosophical Issues, Igor Primoratz ed. (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004), pp. 3-14, is available online courtesy of the publisher. (Posted 10/28/06)
  • "The Terrorism Index," Foreign Policy, July/August 2006, asks "Is the United States winning the war on terror?" Answer: "Not according to more than 100 of America's top foreign-policy hands. They see a national security apparatus in disrepair and a government that is failing to protect the public from the next attack..." (Posted 11/10/06)
  • Bruce Ackerman argues for dealing with terrorist attacks in terms of "The Emergency Constitution," and argues that "This is not War," in Yale Law Journal, Volume 113, 2004. In his view, which is more reasonable than the conventional wisdom, terrorist attacks should be considered as constitutionally and temporally limited "states of emergency" short of war. (Posted 12/18/06)
  • In "The 'War on Terror' and the Erosion of the Rule of Law:The U.S. Hearings of the ICJ Eminent Jurist Panel," Human Rights Brief, Volume 14, Issue 1, Winter 2006, Mark W. Vorkink & Erin M. Scheick look at the global war on terror as a "litmus test" for human rights and the rule of law. (Posted 1/21/07)
  • William E. Scheuerman, "Rethinking Crisis Government," 2002 Annual Meeting of the American Political Science Association, Boston, August 29-September 1, 2002. Abstract: "The rush to broaden executive prerogative in the aftermath of the September 11 terrorist attacks rests on a series of traditional assumptions about the nature of executive power that no longer hold water. In particular, the conventional conception of the unitary executive as best suited to the demanding tasks of crisis government is subject to criticism." (Posted 1/25/07)
  • In "Sending the Bureaucracy to War," Forthcoming in Iowa Law Review, Volume 92, 2007, Elena A. Baylis & David Zaring critically examine post-9/11 changes in U.S. administrative law that facilitate certain abuses of state and federal executive powers. (Posted 2/1/07)
  • In section III of "Morality & Consequences," The Tanner Lectures on Human Values, May 1980, Jonathan Bennett examines the "oddness" of the doctrine of double effect that is often invoked to distinguish between justifiable tactical bombing and unjustifiable terror bombing. (Posted 2/3/07) (Updated 5/29/11)
  • Foreign Policy's "Terrorism Index," a bi-partisan study of 100 top national security experts, suggests that the global war on terror has made American's less secure. (Posted 2/16/07)
  • In "A Matter of Pride," Democracy: A Journal of Ideas, Winter 2007, Michael Lind & Peter Bergen argue that the "humiliation theory" of radical political violence explains "why so many terrorists come from middle-class or wealthy backgrounds." (Posted 2/18/07)
  • In "Countering Global Insurgency," Small Wars Journal, November 30, 2004, David Kilcullen outlines a "disaggregation" strategy for managing the "ecosystem" of Islamist terrorism. See also his "Counterinsurgency Redux," Small Wars Journal, September 17, 2006. (Posted 2/27/07)
  • In "The Bush Doctrine and Just War Theory", The Online Journal of Peace and Conflict Resolution, volume 6, number 1, Fall, 2004, Dale T. Snauwaert argues that "In a number of ways the Bush Doctrine as a response to international terrorism is, tragically,undermining the international moral and legal order, thereby undermining the very order necessary for sustainable security against terrorism." (Posted 3/14/07)
  • In "Assessing the Effectiveness ofthe UN Security Council's Anti-terrorism Measures: TheQuest for Legitimacy and Cohesion," The European Journal of International Law, Vol. 17, no.5, 2007, pp. 881-919, Andrea Bianchi "attempts to evaluate, primarily from the perspective of legal interpretation, how to reconcile the predominant security concerns underlying anti-terror measures with the cohesion of the international legal system." (Posted 6/9/07) (Updated 5/29/11)
  • In "Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?" Journal of Applied Philosophy, Vol. 23, No. 3, 2006, Michael Gross argues that "While named killings might be defensible on the grounds that there are no other ways to disable combatants when they fight without uniforms, the costs, including the cost of targeted killing emerging as an acceptable convention in its own right, should be sufficient to view the practice with a good deal of caution." (Posted 6/17/07) (Updated 5/29/11)
  • In "Jus Ad Bellum After 9/11: A State of the Art Report" (pdf), The International Political Theory Beacon, Issue 3, June 2007, Mark Rigstad presents an overview and critical assessment of how just war theoretic principles of just cause, discrimination, and proportionality have been applied in the Global War on Terror. Also available here in html format. (Posted 4/30/07. Updated 6/17/07)
  • Chet Richards has posted online a draft of the introduction to his next book, If We Can Keep It, in which he debunks our myths of national defense. (Posted 6/18/07)
  • Richard Rorty recently died at 75, unleashing a torrent of reminiscence, criticism and encomium. On March 4, 2004, in Potsdam, Rorty concluded a lecture about "Anti-terrorism and the National Security State" with these ominous words: "In Europe and in North America elites have come to believe that they cannot carry out their mission of providing national security if their deliberations are carried out in public, and 9/11 only strengthened this conviction. Further attacks are likely to persuade those elites that they must destroy democracy in order to save it. Historians may someday have to explain why the West's golden age lasted only 200 years. The saddest pages in their books will be those in which they describe how the citizens of the democracies, by their craven acquiescence in governmental secrecy, helped bring about the disaster." Was he right? At this point, who knows? As Rorty himself once famously said, "Time will tell; but epistemology won't." Setting aside the question of the truth of Rorty's conclusion, I'm left simply with the desire that it should be proven wrong, and the desire to do something that might help to prove it wrong. Insofar as this appears to be the kind of response that Rorty wished to elicit, I guess I'm in accord. Follow these links to watch part one and part two of the video recording of Rorty's lecture. (Posted 6/21/07)
  • In "The Legacy of Nuremberg: Confronting Genocide and Terrorism Through the Rule of Law," Gonzaga Journal of International Law, Volume 10, Issue 2, 2006, John Shattuck argues that the Bush Doctrine has undermined our most effective legal means of combating terrorism. (Posted 6/26/07)
  • In "Criminal Defendants and Military Enemies: Defining the Terrorist Threat," FSU College of Law, Public Law Research Paper No. 264, August 24, 2007, Benjamin J. Priester defends a way of integrating military and criminal models for defining transnational terrorist organizations. (Posted 9/1/07)
  • David M. Lieberman examines the legal difference between terrorists and freedom fighters in "Sorting the Revolutionary from the Terrorist: The Delicate Application of the 'Political Offense' Exception in U.S. Extradition Cases," Stanford Law Review, Volume 59, Issue 1, pp. 181-212. (Posted 10/20/07)
  • Neal Katyal addresses the constitutional 'equal protection' issues raised by the Military Commissions Act in "Equality in the War on Terror," Stanford Law Review, Volume 59, Issue 5, pp. 1365-1394. (Posted 10/20/07)
  • In "Rendered Meaningless: Extraordinary Rendition and the Rule of Law," NYU School of Law Working Papers Number 43, November 20, 2006, Margaret L. Satterthwaite examines arguments in favor of outsourcing torture, and finds them wanting. (11/10/07)
  • In "Terrorism and Just War," Philosophia, Volume 34, August 2006, pp. 3-12, Michael Walzer asks "What can go wrong in the 'war' against terrorism, and is just war theory equally helpful in thinking about this 'war' where the scare quotes are always necessary?" (Posted 11/14/07)
  • In "The Strategic Logic of Suicide Terrorism," American Political Science Review, Vol. 97, No. 3, August 2003, Robert A. Pape argues that "Religious fanaticism does not explain why the world leader in suicide terrorism is the Tamil Tigers in Sri Lanka. . . To advance our understanding of this growing phenomenon, this study collects the universe of suicide terrorist attacks worldwide from 1980 to 2001, 188 in all. In contrast to the existing explanations, this study shows that suicide terrorism follows a strategic logic, one specifically designed to coerce modern liberal democracies to make significant territorial concessions." (Posted 12/26/07)
  • In "Terrorism, Shared Rules and Trust," forthcoming in the Journal of Political Philosophy, Matthew Noah Smith argues that "terrorism is specially objectionable because terrorist acts threaten two very valuable things: valuable shared rules of war and valuable trusting relationships between both international allies and nations at war." (Posted 1/16/08)
  • In "The Senses of Terrorism," forthcoming in Review Journal of Political Philosophy, Volume 6, fall 2008, Mark Rigstad exposes "the methodological errors involved in attempting to value-neutralize the concept" of 'terrorism,' and defends "an effects-based approach to the taxonomy of 'terrorism' that builds out from a central conceptual connection between the term's negative connotation and a widely shared moral presumption against the killing of innocent non-combatants." (Posted 1/16/08)
  • For a very good introductory overview of the philosophy of "Terrorism", see Igor Primoratz's entry for the Stanford Encyclopedia of Philosophy. (Posted 2/10/08)
  • In "They knew, but did nothing," an extract from his new book on the 9/11 Commission, Philip Shenon "uncovers how the White House tried to hide the truth of its ineptitude leading up to the September 11 terrorist attacks." (Posted 3/10/08)
  • Karl Schmitt's "Theory of the Partisan: Intermediate Commentary on the Concept of the Political" (1963) is available online from Telos 127, Spring 2004. The essay presents a historical analysis of the modern development of irregular troops (including what we would now call terrorists) as elements in the theory and practice of political strategy and military tactics. (Posted 7/25/08)
  • Foreign Policy and the Center for American Progress have released their 2008 Terrorism Index. The study records an emerging optimism that suggests that the GWOT is winning the hearts and minds of leading U.S. counter-terrorism industry experts. (Posted 8/20/08)
  • In "The dangers of fighting terrorism with technocommunitarianism: constitutional protections of free expression, exploration, and unmonitored activity in urban spaces," Fordham Urban Law Journal, July 1, 2005, Marc Blitz argues that "Unlike modern Fourth Amendment case law, which gives short shrift to the importance of insulating public space from government control and design, modern First Amendment law places meaningful limits on the control that governmental authorities may exercise over streets, parks, and other public spaces central to urban life." (Posted 9/2/08)
  • The ForaTV video below presents an penetrating workshop on "State and International Legal Responses to Terrorism," held October 22nd, 2007 at the Center for Strategic and International Studies in Washington, D.C. It features panelists Professor William Banks, Professor Claude Bruderlein and Colonel William Lietzau; and it is moderated by Victoria Holt. (Posted 11/25/08)
  • In "Fatal Choices: Israel's Policy of Targeted Killing," Mideast Security and Policy Studies, No. 51, September 2002, Steven R. David argues that although targeted killings have "not appreciably diminished the costs of terrorist attacks and may have even increased them," nevertheless the practice is justifiable as a means of "providing retribution and revenge for a population under siege," and because it "may, over the long term, help create conditions for a more secure Israel." (Posted 11/25/08)
  • In this online draft of "The Legality of Targeted Killing as an Instrument of War: The Case of Qaed Salim Sinan al-Harethi," prepared for the 5th Global Conference on War, Virtual War and Human Security, Budapest 2008, Avery Plaw argues that "while there is a strong case for the legality of the al-Harethi operation, this case relies on elements that may not apply to many other cases. The al-Harethi case thus helps to define the legal limits of targeted killing." (Posted 11/30/08)
  • In "The 'Bush Doctrine' as a Hegemonic Discourse Strategy," Critical Review of International Social and Political Philosophy, Vol. 12, No. 3, June 2009, Mark Rigstad "critically examines efforts to ground the morally personifying language of the Bush Doctrine in term of hegemonic stability theory." In this article, "Particular critical attention is paid to the arguments of leading proponents of this brand of game theory, including J. Yoo, E. Posner, A. Sykes, and J. Goldsmith. When examined in their terms, the Bush Doctine is best understood as an ethically hypocritical and shortsighted international discursive strategy. Its use of moralistic language in demonizing 'rogue states' for purely amoral purposes is normatively incoherent and discursively unsustainable. If it is a strategically rational piece of international communication, it seems designed to undermine globally shared normative meanings for the sake of short-term unilateral military advantage." (Posted 12/19/2008)
  • "On Wednesday, January 28, 2009, the University of Texas School of Law and the Robert S. Strauss Center for International Security and Law hosted a panel discussion about the task of reforming the government's approach to military detentions... The distinguished panel included John Bellinger, who served as Legal Adviser to the Secretary of State and to the National Security Council during the Bush Administration; Benjamin Wittes of the Brookings Institute, author of the book Law and the Long War: The Future of Justice in Age of Terror; and Stephen Vladeck, professor of law at American University and coauthor of a brief to the Supreme Court on behalf of Guantanamo detainee Salim Hamdan. Professor Bobby Chesney, a Strauss Center fellow and visiting professor of law at the University of Texas School of Law, facilitated the discussion." Follow this link to see a video webcast of "The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism." (Posted 2/6/09)
  • In "Terrorism and the Proportionality of Internet Surveillance," European Journal of Criminology, Vol. 6, No. 2, 2009, Ian Brown and Douwe Korff argue that the "disproportionate nature" of internet-based surveillance and profiling of terrorism suspects is "problematic for democracy and the rule of law, and will lead to practical difficulties for cross-border cooperation between law enforcement agencies." (Posted 2/10/09)
  • In "Targeted Killing," Daniel Statman argues that "if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what may come to be called 'old-fashioned') wars, one cannot object -- on moral grounds -- to the targeted killing of terrorists in what are called wars against terror. If one rejects this legitimacy, one must object to all killing in war, targeted and non-targeted alike, and thus not support the view, which is criticized here, that targeted killings are particularly disturbing from a moral point of view." (Posted 2/15/09)
  • In "Can Terrorism Be Justified?" Ethics in International Affairs, Rowman and Littlefield, 2001, Andrew Valls argues that "terrorism, understood as political violence committed by nonstate actors, can be assessed from the point of view of just war theory and that terrorist acts can indeed satisfy the theory's criteria." Although I have argued in "The Senses of Terrorism" that Valls' semantic methodology is fundamentally flawed, I nevertheless recommend the article. (Posted 2/26/09)
  • In "War About Terror: Civil Liberties and National Security after 9/11," a Council on Foreign Relations working paper, February 2009, Daniel B. Prieto argues that "sharp disagreements over national security and civil liberties, as well as errors and overreach in U.S. counterterrorism practices, have stood in the way of America's ability to forge a critical and sustainable foreign policy accord on how to address terrorist detention and trials, as well as domestic intelligence policies. The study recommends that the United States reexamine the scope and limits of its war against al-Qaeda, treating national security and the protection of individual liberties as coequal objectives." (Posted 3/25/09)
  • In "Playing by the Rules: Combating Al Qaeda within the Law of War," Loyola-LA Legal Studies Paper No. 16, April 7, 2009, David W. Glazier argues that "Good faith application of law of war rules . . . offers better protections for civil liberties than currently proposed solutions such as national security courts offering less due process than regular federal trials." (Posted 5/13/09)
  • In this excerpt from Philosophy in a Time of Terror, Giovanna Borradori interviews Jurgen Habermas and Jaques Derrida on 9/11 and the problem of global terrorism. (Posted 6/24/09)
  • In "Barbarians and the International Law: Beyond the Gates of Liberty?", a paper presented at the annual meeting of the ISA's 49th Annual Convention, Bridging Multiple Divides, Hilton San Francisco, CA, March 26, 2008, Daniel Brunstetter examines the place of "barbarians" in Renaissance and Early Modern sources of international legal theory -- from Vitoria to Kant -- as a way of shedding light on the war on terror. Brunstetter takes the idea of the evil of terrorism seriously, yet gives Las Casas the final word of warning: "every nation, no matter how barbaric, has the right to defend itself against a more civilized one that wants to conquer it." (Posted 10/26/09)
  • In "A Person Otherwise Innocent: Policing Entrapment in Preventive, Undercover Counterterrorism Investigations," The Journal of Constitutional Law, Volume 11, Number 5, July 2009, Jon Sherman argues that, in light of the U.S. Federal government's strategic use of preventive counterterrorism prosecutions, "the entrapment doctrine must be restructured to keep FBI counterterrorism efforts targeted and focused and to safeguard innocent First Amendment activity from the reach of highly inchoate offenses, which are aggressively pursued with undercover informants." To receive regular notices about similar articles and related court cases, sign up for Robert Chesney's excellent national security law mailing list here. (Posted 12/23/09)
  • For a brief look at the legality of what has become one of the leading military options in counter-terrorism efforts, see "Obama Administration Offers Legal Defense of Drone Attacks, Targeted Killing," by John Cella of the Harvard National Security Journal, Mar 28, 2010. (Posted 3/28/10)
  • For an extended scholarly discussion of the topic, check out the Harvard National Security Symposium on drone killing posted here (part 1) and here (part 2). (Posted 3/28/10)
  • In "Terrorism, Supreme Emergency and Killing the Innocent," Perspectives: Review of International Affairs, Volume 17, Number 1, 2009, Anne Schwenkenbecher offers a critique of Walzer's account of supreme emergencies, and argues that "the supreme emergency exemption justifies the resort to terrorism against innocents to avert moral disasters such as genocide and ethnic cleansing, provided that the criteria of last resort, proportionality and public declaration are satisfied." (Posted 6/29/10)
  • In "A Philosopher Looks at Contemporary Terrorism," Cardozo Law Review, Volume 29, Number 1, 2007, Igor Primoratz briefly examines the history of terrorism, offers a definition of what it has become, and engages the question of its justification from both consequentialist and nonconsequentialist ethical perspectives. (Posted 9/3/10)
  • In "Assessing the Terrorist Threat," a 9/10/10 report of the Bipartisan Policy Center, Peter Bergen and Bruce Hoffman examine the "increasingly prominent role in planning and operations that U.S. citizens and residents have played in the leadership of al-Qaeda and aligned groups" and find that "these jihadists do not fit any particular ethnic, economic, educational, or social profile." Also, they find that "the ramped-up campaign of drone attacks in Pakistan" is effectively working against al-Qaeda and its allies. (Posted 9/13/10)
  • This online video from the Whitney R. Harris World Law Institute presents a debate between Kenneth Anderson and Mary Ellen O’Connell on the ethical, political and legal merits of using unmanned drones for targeted killings in counterterrorism warfare. (Posted 11/29/10)
  • In this FORA.tv video, Obama administration legal adviser, Harold Koh, argues that counter-terrorism targeted drone attacks are consistent with both domestic and international law... (Posted 12/14/10)
  • In "Law From Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict," North Dakota Law Review, Volume 85, 2010, Chris Jenks examines the legality of drone strikes. "The article begins by defining a UAS and discussing its prevalence around the world. Utilizing a recent UAS strike in Pakistan, the article then reviews the international law framework applicable to the use of armed UAS. The article then considers the associated LOAC targeting principles applicable to such a strike, exploring how in some ways UAS strikes are preferable compared to traditional aerial bombing, but in others less so. The article determines that while how one characterizes the conflict in Pakistan, internally and via the United States, and whether Pakistan has consented to the strikes, trigger different analytical frameworks; however, the conclusion is the same—that the UAS strikes are lawful." (Posted 12/14/10)
  • In "'Hearing: Rise of the Drones: Unmanned Systems and the Future of War,' Written Testimony Submitted to Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, US House of Representatives," Kenneth Anderson defends the legality of the "CIA campaign of drone attacks in Pakistan and beyond." (Posted 12/21/10)
  • In "Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations," Adam Ross Pearlman "briefly surveys the legal authorities and implications for the targeted killings of terror suspects within each paradigm: the law of armed conflict, criminal law, and covert action, and argues for the justification of the practice within each." (Posted 12/21/10)
  • In the United Nations Human Rights Council's "Study on Targeted Killings" (an addendum to the "Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions"), Philip Alston argues, "Such policies are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare”, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks." (Posted 12/21/10)
  • In "The Politics of Punishing Terrorists," Ethics & International Affairs, Volume 24, Number 1, Spring 2010, Anthony F. Lang Jr. argues that "The international community needs to initiate a wider discussion about both sentencing standards and the crime of terrorism," and he recommends that the international community should "work out some sentencing guidelines first for the crimes currently in place and move toward a clearer statement of the criminalization of terrorism at a later stage." (Posted 12/27/10)
  • Matthew Swift and Nicholas Logothetis of Concordia Partnerships Against Extremism, "discuss their new formula for approaching the issue of terrorism" in the video embedded below:
  • In "The Politics of Punishing Terrorists," Ethics & International Affairs, Volume 24, Number 1, Spring 2010, Anthony F. Lang Jr. argues that "The international community needs to initiate a wider discussion about both sentencing standards and the crime of terrorism," and he recommends that the international community should "work out some sentencing guidelines first for the crimes currently in place and move toward a clearer statement of the criminalization of terrorism at a later stage." (Posted 7/8/11)
  • In "Predators Over Pakistan,"The Weekly Standard, Volume 15, Number 24, pp. 26-34, March 8, 2010, Kenneth Anderson argues "that targeted killing, by means of unmanned aerial vehicles such as Predator "drones" and including targeted killing as carried out by the CIA, is both a good policy in combating transnational terrorism and a lawful means of self-defense under international law." He goes on to suggest that "a general campaign within the international "soft law" community is gradually gathering momentum to undermine the legal legitimacy of targeted killing, particularly by covert services of the civilian CIA, and that the administration needs to defend traditional American legal views governing these policies." (Posted 7/8/11)
  • In "Can Targeted Killing Work as a Neutral Principle,"NYU School of Law, Public Law Research Paper No. 11-20, Jeremy Waldron critically examines "the prospects for legitimizing what is known as "targeted killing" - the use of assassins, death squads, or other murderous techniques - against identified civilians whose continued existence is thought to pose a serious threat of some kind to a given community and its members." He further suggests that "the potential for abuse is inherent in principles of the sort that are envisaged to legitimize targeted killing." (Posted 7/8/11)
  • In "The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation When the Terrorist is a United States Citizen?," Journal of International Law, Volume 19, 2011, Michael Epstein "explores the claims of Nasser al-Aulaqi on behalf of his son, Anwar al-Aulaqi, who has allegedly been placed on the Obama Administration's pre-approved terrorist kill list." Epstein suggests that "this case raises fundamental issues regarding the Due Process owed to U.S. citizens engaged in acts of terrorism abroad, but the sensitive nature of national security and military concerns and prudential requirements will ultimately keep full adjudication of these issues awaiting their day in court." (Posted 7/8/11)
  • In "From Killer Machines and Swarms, or Why Ethics of Military Robotics is not (necessarily) About Robotics,"SpringerLInk, March, 2001, Mark Coeckelbergh wants to challenge "the prevalent assumptions that military robotics is about military technology as a mere means to an end, about single killer machines, and about military developments." (Posted 7/8/11)
  • In "Suicide Terrorism – Opportunistic Tactic or Strategic Campaign?,"Western Political Science Association, 2011 Annual Meeting, authors Sarat Krishnan, Ami Pedahzur, and Bobby Jenkins examine cases of suicide attacks in Iraq and Pakistan suggesting that these types of attacks "are a set of opportunistic tactics used in conjunction with other conventional tactics in pursuit of a diverse set of goals." (Posted 7/8/11)
  • Here is Obama’s National Strategy for Counterterrorism. (Posted 8/2/2011)
  • Click here to watch and/or listen to "Moving Targets: Issues at the Intersection of National Security and American Criminal Law," an April 12, 2011 symposium at The Georgetown Center on National Security, featuring Marty Lederman, Mathew Olsen, Aziz Huq, Laura Donohue, Julie O'Sullivan, Abbe Smith, John Stanton, James Zirkle, and Stephen Vladeck. (Posted 8/6/11)
  • In "Targeting, Command Judgment, and a Proposed Quantum of Proof Component: A Fourth Amendment Lesson in Contextual Reasonableness," Geoffrey S. Corn provides an "analysis of U.S. constitutional Fourth Amendment jurisprudence, focused specifically on the relationship between several distinct quanta standards for assessing reasonableness and the interests they were developed to balance." He goes on to argue that "different quantum standards established to define reasonableness in the U.S. Fourth Amendment context offer a logical starting point for providing a similar touchstone for assessing the reasonableness of targeting decisions in armed conflict."
  • In "'Efficiency' Jus in Bello and 'Efficiency' Jus Ad Bellum in the Practice of Targeted Killing Through Drone Warfare?," Kenneth Anderson examines the tension that drone warfare creates between jus in bello and jus ad bellumconsiderations: "The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum)."
  • In "Unlawful Killing with Combat Drones: A Case Study of Pakistan," Mary Ellen O'Connell questions the governments authorization of increased drone attacks and argues these types of attacks "cannot be justified under international law for a number of reasons." One chief reason, O'Connell argues, is that "international law does not recognize the right to kill with battlefield weapons outside an actual armed conflict." (Posted 8/17/11)
  • In "Drone Warfare and the Law of Armed Conflict," Denver Journal of International Law and Policy, Volume 39, No. 1, 2011, Ryan Vogel argues that, "As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict." Further examination is needed for evaluating "whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this nontraditional armed conflict and ascertain whether new rules or laws are needed to govern their use." (Posted 8/17/11)
  • In "Drone Attacks Under the Jus ad Bellum and Jus in Bello: Clearing the 'Fog of War'," Yearbook of International Law, Forthcoming, Michael Schmitt examines "both the law governing resort to force and the international humanitarian law aspects of drone attacks." (Posted 8/17/11)
  • In "Discussion Paper: Drone Attacks, International Law, and the Recording of Civilian Casualties of Armed Conflict," Oxford Research Group, June 2001, authors Susan Breau, Marie Aronsson, and Rachel Joyce suggest that "International lawyers have identified an existing but previously unacknowledged requirement in law for those who use or authorize the use of drone strikes to record and announce who has been killed and injured in each attack." (Posted 8/17/11)
  • In " Law Enforcement as a Counterterrorism Tool," Journal of National Security Law and Policy, Volume 5:1, David Kris suggests that while some question “the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists”, he wants to argue that “we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values”. (Posted 9/17/11)
  • The Program on Humanitarian Policy and Conflict Research "is an international research and policy program based at the Harvard School of Public Health. The Program offers a multidisciplinary approach to new challenges in the field of humanitarian affairs". In Live "Seminar 34: Beyond the attack on Bin Laden", panelist's discuss "the legal issues that arise in situations where a decision is made to target individuals – potentially outside the immediate theater of hostilities – using military force". (Posted 9/17/11)
  • In "War as Punishment", Georgetown Law: The Scholarly Commons, 2011, David Luban maintains that "the 'punishment theory of just cause' has been a theme in western culture" and argues "the punishment theory remains alive and well in the moral imaginations of modern societies, even if diplomats and lawyers carefully scrub it from official justifications of armed conflict". (Posted 9/17/11)
  • Follow this link to listen to a Washington Institute for Near East Policy discussion of Victor Comras's Flawed Diplomacy: The United Nations and the War on Terrorism, November 19, 2010. (Posted 9/19/11)
  • In "Can Counter-Terrorist Internment Ever Be Legitimate," Human Rights Quarterly, Volume 33, 2011, Fiona De Londras argues that "that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation." (Posted 12/28/11)
  • In "Explaining Suicide Terrorism: A Review Essay," Security Studies, Volume 16, Number 1, January–March 2007, pp. 133–162, Martha Crenshaw critically examines a substantial body of empirical work and competing policy recommendations. Some of her conclusions may surprise you: "There is no longer any need to introduce an analysis of suicide attack by explaining to the uninitiated that it is not rooted in psychopathology or fanaticism or indeed in any single cause such as deprivation, religious belief, or frustration. It is an adaptable and controllable tactic. It has an instrumental value for an organization. Despite impressions of ubiquity, its popularity and effectiveness are limited... The assertion that suicide tactics are a superior demonstration of resolve and elicit pity and admiration as well as shock and horror is not implausible, but it is not supported by comparative empirical research... Perhaps governments do not need a specific political response to suicide tactics. They could concentrate simply on guarding against all manner of acquiring, transporting and detonating explosive devices broadly construed." (Posted 1/3/11)
  • In "The Strategic Logic of Suicide Terrorism," American Political Science Review, July 14, 2003, Robert A. Pape argues that "Western democracies should pursue . . . policies which in practice may have more to do with improving homeland security than with offensive military action." (Posted 1/3/11)

NON-COMBATANT IMMUNITY: (scroll down for the most recent posts)

  • In "The Difference Uniforms Make: Collective Violence in Criminal Law and War" (pdf), Christopher Kutz argues "that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked." His paper was part of a workshop recently hosted by the Kadish Center for Morality, Law and Public Affairs, UC Berkeley School of Law. (Posted 3/20/05)
  • In "The Futility of Barbarism: Assessing the Impact of the Systematic Harm of Non-combatants in War" Ivan Arreguin Toft asks "Under what conditions does barbarism -- a state or non-state actor's deliberate and systematic injury of non-combatants during a conflict -- help or hinder its military and political objectives?" He finds that "in general, war crime doesn't pay." (Posted 1/20/06)
  • In "Terrorism and Response: A Moral Inquiry into the Killing of Noncombatants," Camillo C. Bica argues that the deliberate killing of non-combatants in terrorist attacks and the "collateral" killing of non-combatants in counter-terrorism warfare are "morally equivalent." (Posted 5/18/06)
  • In "Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants," Ethics & International Affairs Volume 19, Issue 3, December 2005, Larry May critically examines and reformulates the traditional principle of discrimination that informs both just war theory and international humanitarian law. (Posted 8/15/06)
  • In "Guns, Food, and Liability to Attack in War," Ethics Volume 120, October 2009, pp. 36–63, Cecile Fabre challenges the dominant view of non-combatant immunity, according to which "civilians who provide combatants with military resources such as guns (civiliansM) are widely deemed liable to attack, whereas civilians who provide them with welfare resources such as food and medical care (civiliansW) are widely deemed to be immune from it." She argues that liability to attack in war does not hinge upon the "functional" difference between military and non-military activities. Instead, she argues, "whether a civilian is liable to attack depends on the extent to which he is causally and morally responsible for wrongful enemy deaths." (Posted 5/28/11)
  • In "Risk Taking and Force Protection," a Georgetown University Law Center working paper, forthcoming in Reading Walzer Itzhak Benbaji and Naomi Sussman (eds.), David Luban asks "(1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own"? (Posted 6/5/11)
  • In "Rethinking Non-Combatant Immunity,"Theoretical & Applied Ethics, November, 2010, Mathew Bruenig notes that, "Contemporary just war theorists claim that it is unethical to target non-combatants such as civilians because non-combatants are neutral." He accounts for this view as follows: "Liberal political theory is fundamentally premised on the idea that the citizens of a particular society consent to and authorize the actions their sovereign makes", which in turn, 'strips' them of any claim for neutrality. (Posted 7/8/11)
  • In "The Protection of Civilians in War: Non-Combatant Immunity in Islamic Law," International Islamic University, March, 2011, Muhammad Munir argues that, "Islamic law makes a distinction between combatants (those who fight) and non-combatants (those who do not fight) and allows fighting with the former and protection to the latter." (Posted 7/8/11)
  • In "Asymmetric war, symmetrical intentions: killing civilians in modern armed conflict, Global Crime, Volume 10, Number 4, November 2009, pp. 320–336, Michael L. Gross shows how "Asymmetric war expands the range of permissible civilian targets that each side may attack without incurring charges of terrorism or disproportionate harm." (Posted 8/9/11)
  • In "Risk Taking and Force Protection," Reading Walzer, Itzhak Benbaji, Naomi Sussman, eds., Forthcoming, David Luban addresses two questions "about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own." (Posted 8/17/11)

THE RIGHTS OF (SUSPECTED) ENEMY COMBATANTS (benevolent quarantine, detention, torture, etc.): (scroll down for the most recent posts)

  • For authoritative legal commentaries and reports on the treatment of detained enemy combatants from Abu Ghraib to Guantanamo Bay, browse the website for theNational Institute of Military Justice.
  • Follow these links to read the full texts of the U.S. Supreme Court decisions in the cases of Hamdi v. Rumsfeld & Rasul v. Bush.
  • On January 9th, 2002, John Yoo and Robert Delahunty of the Department of Justice's Office of Legal Counsel (OLC) issued a controversial or, even better, notorious memo on the applicability of U.S. treaties and laws to Al Quaida and Taliban detainees. Jack M. Balkin of Yale Law School offers an astute legal analysis of the OLC's torture memo in his blog entries of 7/15/04 & 7/16/04. (Posted 7/25/04)
  • Mark A. Bland presents a useful analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia. (Posted 10/20/04)
  • Phillip Carter argues in Slate that "blowback" from the Bush administration's decision to "scrap Geneva" is "The real reason Guantanamo detainees have returned to the battlefield". (Posted 10/26/04)
  • A soldier who served with the 320th Military Police Company at Abu Ghraib speaks out about the atrocities he witnessed in "In Good Conscience" By Scott Fleming, LiP Magazine. Available through Alternet.org. (Posted 1/10/05)
  • Read testimony on detainees presented before the Senate Judiciary Committee by Stephen Schulhofer of NYU School of Law. (Posted 6/23/05)
  • David A. Martin's articles on 'Offshore Detainees and the Role of Courts after Rasul v. Bush' and 'A New Era for U.S. Refugee Resettlement' are available for downloading from the Univeristy of Virginia Public Law and legal Theory Working Paper Series. Abstracts: The first article "sketches a workable and restrained regime for individualized consideration of challenges to detention, building on a structure already taking initial shape in the wake of Rasul and the companion Hamdi case. Such claims would be heard in military tribunals, subject to habeas review in federal court, according to a narrow and deferential standard of review..." The second "sets forth some of the principal analysis from a lengthy report chartered by the U.S. State Department that critically examined this country's refugee resettlement program, which has encountered serious difficulties since September 11, 2001..." (Posted 6/24/05)
  • Follow this link to watch Democracy Now's presentation of Jamie Doran's documentary, "Afghan Massacre: The Convoy of Death". (Posted 10/26/05)
  • As Josh White reports in today's Washington Post, "A federal judge in Washington ruled yesterday that the continued detention of two ethnic Uighurs at the U.S. prison facility at Guantanamo Bay, Cuba, is "unlawful," but he decided he had no authority to order their release." Read more... (Posted 12/23/05)
  • If you've been following the news about Guantanamo, you know that in the absence of fair legal trial proceedings the justifiability of the detainments is being tried in the court of public opinion and unofficial, scholarly legal opinion. In this debate Mark Denbeaux's "Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data" is especially important for showing how thin the cases for the prosecution would be against many of the detainees if they were granted rights to fair legal trials. (2/24/06)
  • 'Epistemic Systems', Episteme: Journal of Social Epistemology 2(2), 2005, is a game-theoretic study showing that torture is a poor means of obtaining information because the tortured have no good reason to trust that the torture will stop if and when they tell the truth. Click on the link to download a .doc version of the paper from the homepage of the author, Roger Koppl. (3/7/06)
  • Andrew Nathan's 15 minute RealVideo lecture "On Torture" (Columbia University 3/29/05) is a succinct summation of the U.S. departure from its international treaty commitments post-9/11. (Posted 6/8/06)
  • The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of Europe issued this report on "secret detentions and unlawful inter-state transfers." It does not paint a pretty picture. (Posted 6/16/06)
  • In Hamdan v. Rumsfeld the U.S. Supreme Court declared (5-3) that Bush administration handing of Guantanamo detainees violates U.S. military law and legal commitments to the Geneva conventions. (Posted 7/11/06)
  • In "Contract to torture," Salon, August 9, 2004, Osha Gray reveals that "inexperienced, under-supervised private-sector employees actively took part in horrifying prisoner abuse" at Abu Ghraib. Joshua Holland follows up on this issue more broadly in his report for AlterNet (9/7/06) on how "Pentagon Spends Billions to Outsource Torture." Writing for The American Prospect (9/7/06) Tara McKelvey calls these private contractors "The Unaccountables." And Peter W. Singer's article on "The Contract the Military Needs to Break," in the Washington Post (9/12/06) similarly finds that private contractors operate in an accountability vacuum. This is a good reason for thinking that employees of a privatized interrogation industry are even more likely to violate standards of international human rights law than traditional public officers of the state security/intelligence apparatus. (Posted 9/14/06)
  • Margaret L. Satterthwaite's "Rendered Meaningless: ExtraordinaryRendition and the Rule of Law," NYU Legal Theory Working Papers, Number 43, 2006, examines relevant legal arguments and concludes that "a practice purportedly developed to uphold the rule of law against lawless terrorists -- rendition to justice -- has become a lawless practice aimed at perverting the rule of law in relation to terrorism -- extraordinary rendition." (Posted 1/12/07)
  • In "Due Process and Empire's Law: Hamdan v. Rumsfeld," Dissent, Winter 2007, Margaret Kohn critically examines recent U.S. law pertaining to military tribunals for Guantanamo detainees. Although Hamdan v. Rumsfeld and the Military Commissions Act affirm a constitutional separation of powers, they do nothing to address the central problem, which is that empowering military commissions to try (or denial trial to) enemy combatants "violates the basic legal principle that no person can be a judge in his or her own case." (Posted 1/18/07)
  • In Reinterpreting Torture: Presidential Signing Statementsand the Circumvention of U.S. and International Law," Human Rights Brief, Volume 14, Issue 1, Winter 2006, Erin Louise Palmer critically examines the history of Presidential signing statements and the legality of recent efforts to place the executive above the law. (Posted 1/21/07)
  • Follow this link to view Witness.org's 27 minute long documentary, "Outlawed: Extraordinary Rendition, Torture and Disappearances in the 'War on Terror'," produced and directed by Gillian Caldwell. (Posted 2/10/07)
  • In "A Defense of Torture: Separation of Cases, Ticking Time-bombs, and Moral Justification," International Journal of Applied Philosophy, Volume 19, Number 2, 2006, Fritz Allhoff argues for "the permissibility of torture in idealized cases," which "paves the way for the justification of torture in the real world by removing some candidate theories (e.g., Kantianism) and allowing others that both could and are likely to justify real-world torture." (Posted 2/12/07)
  • Naomi Klein reports for The Nation on how the trial of Jose Padilla is exposing U.S. torture practices to the harsh light of public scrutiny. (Posted 2/26/07)
  • Stuart Taylor presents "The Case for a National Security Court," National Journal, February 26, 2007: "Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion... Creating a National Security Court, with repeat-player lawyers and judges, will change the entire dynamic, and help avoid the excessive rhetoric that has characterized both sides in the war on terror." (Posted 2/28/07)
  • In this video interview with Bruce Fealk of Michigan Progress TV, James Yee, former U.S. Army Chaplain at Guantanamo Bay, recounts details of the detainment, sensory deprivation and character assassination that he suffered upon falling under (ultimately unfounded) suspicion of being a "citizen enemy combatant." (Posted 4/22/07)
  • John Yoo and Jesse Choper debate the legal issues surrounding the Military Commissions Act in this Federalist Society MP3 audio file, recorded at the Bankers Club of San Francisco, April 5, 2007. (Posted 6/9/07)
  • In "The Military Commissions Act, Habeas Corpus, and the Geneva Conventions," Duke Law School Working Paper Number 96, June 1, 2007, Curtis Bradley argues that the Supreme Court is likely to uphold the habeas corpus rights of Guantanamo detainees, and that Congress had legitimate authority in enacting the MCA to narrow the means of U.S. enforcement of Geneva Conventions standards. (Posted 11/10/07)
  • In the Cato Institute video embedded below, Timothy Lynch offers an illuminating examination of the legal issues in the case of Boumediene v. Bush, which "centers on the right of 'enemy combatants' being held in Guantanamo Bay to have their detention reviewed by American civilian courts."
  • Follow this link for the oral arguments presented to the U.S. Supreme Court on December 5, 2007, as well as a Federalist Society debate of Boumediene v. Bush featuring Timothy Lynch, Brad Berenson, Andrew McBride, and Marty Lederman. Boumediene "arises on a writ of habeas corpus filed on behalf of Lakmar Boumediene and other detainees currently being held by the United States at the Guantanamo Bay Naval Base in Cuba. These detainees challenge the legality and constitutionality of their detention as enemy combatants pursuant to the Military Commissions Act of 2006." (Posted 1/28/08)
  • The U.S. Supreme Court's majority (5-4) decision in Boumediene v. Bush confirms in principle that "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Citing Marbury v. Madison, Justice Kennedy argues for the majority that "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say what the law is'." Some "enemy combatants" in the GWOT have been detained without opportunity to challenge the factual grounds of their confinement for more than six years now. But in the Court's opinion, this procedural lacuna in the rule of law cannot persist: "The costs of delay can no longer be borne by those who are held in custody." (Posted 6/12/08)
  • David Luban's "Unthinking the Ticking Bomb," Georgetown Public Law Research Paper No. 1154202, July 1, 2008, is an excellent, devastating dismantling of the standard philosophical justifications of torture. It's analytically acute, informative, and appropriately enlivened by humanitarian indignation. Read it! (Posted 8/26/08)
  • Torturing Democracy is an excellent (but depressing) online documentary about U.S. treatment of detainees in the GWOT. The website also has a useful archive of relevant documents. I highly recommend both the film and the archive for purposes of classroom instruction. (Posted 10/20/08)
  • In her Public Reason podcast, "Torture Lite and the Normalisation of Torture," Jessica Wolfendale argues that "that so-called torture lite techniques share certain features that tend to mask the effects of these methods on the victims and minimize the torturer's role in causing the victims' suffering, and that this might play an important role in making such forms of torture seem more palatable to liberal democracies than would otherwise be the case." This online symposium also includes a readable version of the paper and comments by David Sussman. (Posted 11/9/08)
  • In "The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror'," Margaret Satterthwaite tells a harrowing tale of "mistaken identity" as it wound its way "from U.S. court to the Inter-American Commission on Human Rights." The devil, as they say, is in the details. (Posted 12/18/08)
  • In "Terrorism and the Convergence of Criminal and Military Detention Models," Stanford Law Review, Vol. 60, 2008, Robert Chesney and Jack Goldsmith "show how the two systems have moved to rectify their inadequacies, and to some extent have converged on procedural and substantive criteria for detention" and "identify the specific questions that would-be reformers must address with regard to both substantive detention criteria and procedural safeguards." (Posted 12/23/09)
  • In "Exceptional Engagement: Protocol I and a World United Against Terrorism," Texas International Law Journal, Volume 45, 2009, Mike Newton "challenges the prevailing view that U.S. 'exceptionalism' provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions." Instead, Newton argues that, in denying Geneva Conventions protections for terrorists, the U.S. was forging a new approach to counterterrorism, later emulated by others, which sought to maintain the "core values" of international humanitarian law. (Posted 2/21/10)
  • In "Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?," University of Pennsylvania Law Review PENNumbra, Volume 158, 2010, Claire Finkelstein and Michael Lewis debate whether the authors of the famous Bush Administration torture memo, John Yoo and Jay Bybee, should be subject to criminal prosecution. (Posted 12/14/10)
  • In "Access to Habeas Corpus: A Human Rights Analysis of U.S. Practices in the War on Terrorism," Transnational Law and Contemporary Problems Volume 20, page 3, Spring 2011, Brian R. Farrell looks at "the positions of the Bush and Obama Administrations on access to habeas corpus, and traces the case law of the federal courts in determining the reach of habeas corpus under American law." (Posted 7/8/11)
  • In "Indefinite Detention Under the Laws of War,"Fordham Law Legal Studies Research Number 1729221, authors Chris Jenks and Eric T. Jenson look to "extend the dialogue to substantive consideration of whether the LOAC rules on detention are sufficiently flexible and comprehensive to provide worthwhile and meaningful individual protections." Further arguing that "the basic provisions and safeguards currently extant in the law of armed conflict are sufficient to satisfy an indefinite detention paradigm." (Posted 7/8/11)
  • In "The Laws of War as a Constitutional Limit on Military Jurisdiction," Journal of National Security Law and Policy, Volume 4, Number 2, December 2010, Stephen I. Vladeck attempts "to provide a thorough introduction to – and analysis of – the constitutional limits on the jurisdiction of military commissions." (Posted 8/4/2011)

HUMANITARIAN INTERVENTION: (scroll down for the most recent posts)

  • Look here for book reviews related to the topic of humanitarian intervention.
  • One form of military action that many just war theorists condone is the use of armed forces to stop ongoing genocide and supply aid to persecuted refugees. For a general philosophical account, download Terry Nardin's article on The Moral Basis of Humanitarian Intervention (pdf), courtesy of the Center for Global Peace and Conflict Studies (CGPACS) at the University of California, Irvine. (Updated 9/2/05)
  • In "Humanitarian Action Under Attack: Reflections on the Iraq War," Harvard Human Rights Journal, Volume 17, Spring 2004, Nicholas de Torrente of Doctors Without Borders argues that non-governmental humanitarian organizations must tackle the difficult task of maintaining principled neutrality in order to fulfill their missions. In "Politicized Humanitarianism," Paul O'Brien offers a critical response to de Torrente's article.
  • Tufts University's Humanitarianism & War Project presents many careful and detailed studies of the problems associated with trying to intervene militarily for humanitarian purposes, as well as the problems of conducting effective unarmed humanitarian efforts in war zones.
  • The most important international collaborative work on humanitarian intervention is The Responsibility to Protect, a 2001 report by the International Commission on Intervention and State Sovereignty. The report represents an emerging consensus in international ethics. (Posted 10/21/04)
  • Carla Bagnoli takes a Kantian approach in "Humanitarian Intervention as a Perfect Duty". She argues that we should conceive of humanitarian intervention "as a duty rather than permission, and as a perfect duty rather than an imperfect one -- a duty that proceeds from respect for humanity rather than from charity." (Posted 10/21/04 thanks to Lawrence Solum)
  • Ethics and International Affairs, Volume 18.2, Fall 2004, SPECIAL SECTION: "Humanitarian Aid and Intervention: The Challenges of Integration." The volume includes "Humanitarianism Sacrificed: Integration's False Promise" by Nicolas de Torrente, "Upholding Humanitarian Principles in an Effective Integrated Response" by Joel R. Charny, "An Elusive Quest: Integration in the response to the Afghan Crisis" by Antonio Donini, "Understanding Integration from Rwanda to Iraq" by Joanna Macrae, "The Value of Integration: A U.S. Perspective" by Arthur E. Dewey, "Improving the U.S. Government's Humanitarian Response" by Anita Menghetti and Jeff Drumtra, and "Informing the Integration Debate with Recent Experience" by Larry Minear. (Posted 2/2/05) (Updated 5/30/11)
  • In "Humanitarian Intervention and Just War", Mershon International Studies Review 42, 1998, pp. 283-312, Mona Fixdal and Dan Smith argue "that the Just War framework is able to encompass most of the main arguments in the current humanitarian intervention literature and, thus, that the debate on humanitarian intervention would benefit from more explicit use of this framework." (Posted 3/20/05)
  • T. Modibo Ocran examines legal criteria for distinguising between genuine humanitarian intervention and aggressive intervention masquerading as humanitarianism in the Boston College International and Comparative Law Review 25(1), 2002. (Posted 8/15/05)
  • Fernando Teson's "The Liberal Case for Humanitarian Intervention" is available here for downloading. (Posted 9/2/05)
  • Nicholas Onuf examines the early modern theory and practice of humanitarian intervention in "Humanitarian Intervention: The Early Years." And Martha Finnemore examines more recent history in order to reveal the "Paradoxes in Humanitarian Intervention" (pdf). Both are available online courtesy of CGPACS. (Posted 9/02/05)
  • David Rieff talks about his book, At the Point of a Gun: Democratic Dreams and Armed Intervention, in this 05/04/05 Carnegie Council presentation. (Posted 10/26/05) (Updated 5/30/11)
  • Amitai Etzioni's "Sovereignty as Responsibility" (forthcoming in the Winter 2006 edition of Orbis) "examines the development of a new normative principle of international order, sovereignty as responsibility; its communitarian implications; and the ways that the newly conceived responsibility of the international community to protect the people of states failing to live up to their responsibilities as defined by international norms can come to terms with the notion of democratic self-government." (Posted 12/15/05)
  • Although his "Marxo-Weberian" reflections on recent global patterns of warfare are more wide-ranging than their placement in this section may suggest, Alain Joxe issues a sweeping indictment of "The Humanitarianization of War" in this exerpt from The Empire of Disorder (Semiotext[e], 2002), online courtesy of Borderlands. (Posted 12/23/05)
  • In his 2002 essay on "The Intervention Debate" for the Strategic Studies Institute (SST), John Garofano "argues that American policymakers must take an approach based on principled judgment when deciding on the use of force. He concludes with a discussion of Army roles and requirements for future contingencies." (Posted 12/25/05)
  • Classic text: John Stuart Mill's "A Few Words on Non-Intervention" (pdf) is finally available online for free, courtesy of the new International Political Theory Beacon. (Posted 3/25/06)
  • Max P. Glaser addresses the thorny practical problem of enforcing international human rights law in areas of conflict in "Negotiated Access: Humanitarian Engagement with Armed Nonstate Actors," Max P. Glaser. (Posted 7/19/06)
  • Several articles on humanitarian intervention are collected in International Legal Theory, Vol. 7(1) Spring 2001. It includes the following: "The Non-Intervention Principle and Humanitarian Interventions Under International law," by Jianming Shen; "There is No Norm of Intervention or Nonintervention in International Law," by Anthony D'Amato; Intervention, Imperialism and Kant's Categorical Imperative," by Maxwell O. Chibundu; "The Non-Intervention Principle and International Humanitarian Interventions," by Amy Eckert; "Humanitarian Intervention: A Response," by Bryan F. MacPherson; & "The Legitimacy of Humanitarian Intervention Under International Law," by Mortimer Sellers. (Posted 10/22/06)
  • In "Contending Interventions: Coming to Terms with the Practice and Process of Enforcing Compliance," Human Rights and Human Welfare, Volume 6, 2006, Emilian Kavalski reviews Martha Finnemore's The Purpose of Intervention: Changing Beliefs about the Use of Force and Michael C. Davis' (ed.) International Intervention in the Post-Cold War World: Moral Responsibility and Power Politics, and outlines an alternative approach. (Posted 10/31/06)
  • A working version of Terry Nardin's "The Moral Basis of Humanitarian Intervention" is available for downloading from the UC Irvine school of social sciences where the paper was part of a 5/26/2000 symposium at the Center for Global Peace and Conflict Studies. (Posted 11/7/06)
  • Now available online courtesy of Tim Hayward and the International Political Theory Beacon is Kok-Chor Tan's chapter on "The Duty to Protect," from Terry Nardin and Melissa S. Williams eds., Humanitarian Intervention, NOMOS XLVII, NYU Press, 2005. (Posted 11/11/06)
  • Ryan Goodman rebuts the "pretext" objection to the legalization of humanitarian interventions in "Humanitarian Intervention and Pretexts for War," American Journal of International Law, volume 100, number 1, January 2006, pp. 107-41. (Posted 11/11/06)
  • In a preliminary draft of "Democracy, Prudence, Intervention," Jack Goldsmith examines certain tensions between the kinds of humanitarian interventions that some just war theorists favor and the pressures of instrumentally rational decision-making that are typical of democracies. (Posted 1/18/07)
  • Peter Singer asks "Should Humanitarians Use Private Military Services?" Perhaps, but they should do so cautiously. (Posted 2/27/07)
  • Michael Kocsis' Handy Links is a useful collection of links to articles from 2000 to 2006 on humanitarian intervention. (Posted 3/7/07)
  • In "The Ethics of Armed Humanitarian Intervention," Peaceworks, United States Institute of Peace, July 2002, C. A. J. Coady cautiously examines the attractions and the pitfalls of "destruction and killing in defense of human rights and for prevention of human suffering." (Posted 3/21/07)
  • "Humanitarian Intervention: The Utopia of Just War? The NATO intervention in Kosovo and the Restraints of Humanitarian Intervention," by Arkadiusz Domagala, Sussex European Institute working paper August, 2004. (Posted 8/7/07)
  • There are a number of chapters that touch upon issues of humanitarian intervention in The Use of Force in International Relations: Challenges to Collective Security, Hans Kochler ed., International Progress Organization, 2006. (Posted 12/4/07)
  • In Intervention to stop Genocide and Mass Atrocities: International Norms and U.S. Policy, Council on Foreign Relations Press, October 2009, Matthew C. Waxman recommends "modest steps" that the U.S. could take to improve the international legal regime governing humanitarian intervention in cases of genocide or mass atrocity: "These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval." Thanks to Robert Chesney for the reference. (Posted 12/23/09)
  • In "The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities For A Working Doctrine," Journal of Conflict & Security Law, Vol. 13, Issue 2, 2008, Carlo Focarelli explains why this emerging norm is unpopular among many weak states and some strong ones. (Posted 1/2/10)
  • In "Ecological Intervention: Prospects and Limits," Ethics & International Affairs, Volume 21.3, Fall 2007, Robyn Eckersley "seeks to extend the already controversial debate about humanitarian intervention by exploring the morality, legality, and legitimacy of ecological intervention and its corollary, ecological defense." (Posted 6/9/10)
  • In "The Failure to Protect, Again: A Comparative Study of International and Regional Reactions Towards Humanitarian Disasters in Rwanda and Darfur," Lambert Academic Publishing, 2011, Hagar Taha argues that "Darfur has proved that almost a decade from Rwanda, the practice of humanitarian intervention is still a failure and instead of being carried out in the name of humanitarianism, it abuses the concept for its own end." (Posted 7/8/11)
  • In "Sudan: As South Split Looms, Abuses Grow in Darfur," Human Rights Watch, Press Release, June 6, 2011, HRW reports that "Government forces continue to violate the laws of war in their military operations against rebel forces with utter impunity." The article further suggests that "clear patterns of abuses, often based on ethnicity, have accompanied the renewed fighting." (Posted 7/8/11)
  • In "The Responsibility to Protect and Peacemaking," e-IR, August 4, 2011, Abiodun Williams offers an concise overview of the emergence of the "responsibility to protect" (R2P), the principle's present role in peacekeeping, and the central challenges that it faces. He concludes that, "In the longer term, R2P has the potential to operate as a broader norm-based policy framework. Its concrete impact may not be restricted to crisis prevention and management. As its normative weight increases and its normalization advances, it could enhance local and international institutional capacities to assess and address the risk of atrocities at an earlier stage through primary prevention, ensure robust measures are taken to halt R2P crimes in a more consistent manner, and rebuild societies emerging from conflict." (Posted 8/6/11)
  • In "The Vexing Problem of Authority in Humanitarian Intervention," Wisconsin International Law Journal, Vol. 24, No. 3, pp. 761-772, Fernando Teson reaches the following "grim" conclusion: "In the present circumstances, no state or group of states can serve as an acceptable authorizing body. Governments are caught in the logic of empire: the world’s superpower wants to get its way, and the rest of the world uses international organizations like the UN as a means to curb the superpower's will. The United States, sensing this, resorts to unilateral behavior. Neither one nor the other, caught in this gigantic prisoner's dilemma, will be in a position to advance the cosmopolitan interest of humanity." (Posted 10/1/11)
  • In this episode of "Don't Shout at the Telly," Philip Cunliffe leads a discussion about humanitarian interventions. (Posted 5/17/12)

CIVIL WAR:

  • In "Democracy after Civil War: A Kantian Paradox," New York University, November 16, 2002, Leonard Wantchekon presents a theory of "post-civil war democratization" which draws upon the model of political order among rational demons as well as sources from "classical political theory, contemporary democratic theory, and the state-building literature." (Posted 7/20/06)
  • Nicholas Sambanis discusses "Using Case Studies to Expand Economic Models of Civil War," PPS, Vol. 2, No. 2, June 2004. He shows that we cannot adequately understand civil war as an economic phenomenon without also understanding micro-level political motivations. (Posted 7/20/06)
  • In "Horizontal Inequalities and Civil Conflict," Gudrun Oestby presents a quantitative model of case studies data to confirm and elaborate Kofi Annan's observation that "simple inequality between rich and poor is not enough to cause violent conflict. What is highly explosive is 'horizontal' inequality: when power and resources are unequally distributed between groups that are also differentiated in other ways -- for instance by race, religion or language." (Posted 7/20/06)
  • The myths of the "liberal peace thesis" cloud awareness that war can be formative as well as ruinous, says Christopher Cramer, author of "Civil War is Not a Stupid Thing". (Posted 10/05/06)
  • In "Making War and Building Peace:The United Nations since the 1990's," Michael W. Doyle and Nicholas Sambanis ask why some post-civil war transitions succeed where others fail, and they "consider the implications of theories of civil war for the design and effectiveness of peacebuilding operations." (Posted 10/22/06)
  • In "The Logic of Violence in Civil War," Stathis N. Kalyvas challenges "thewidespread perception of civil war violence as a random, chaotic, and anarchical process (first suggested by Thucydides and Hobbes) or a phenomenon better (or even exclusively) approached from the perspective of passions and emotions." (Posted 12/15/06)
  • In "Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts, Yearbook of International Humanitarian Law, Volume VI, 2003, Francois Bugnion examines the question of whether the principles of just war theory, as articulated in public international law, apply in civil war contexts. The article is available online from the International Committee of the Red Cross. (Posted 1/13/07)
  • A preliminary draft of David A. Lake's "Building Legitimate States After Civil Wars:Order, Authority, and Institutions" is available on the www. (Posted 3/10/07)
  • In "Modeling civil violence: An agent-based computational approach," Proceedings of the National Academy of the Sciences, 2002, Joshua M. Epstein analyses the dynamics of state suppression of "decentralized rebellion" and "communal violence between two warring ethnic groups." (Posted 3/10/07)
  • Nichoas Sambanis asks, "Do Ethnic and Non-Ethnic Civil Wars Have the Same Causes?" World Bank, January 24, 2001. (Posted 4/2/07)
  • Gudrun Ostby's article on "Polarization, Horizontal Inequalities and Violent Civil Conflict," Journal of Peace Research, vol. 45, no. 2, 2008, pp. 143-162, challenges some recent conventional wisdom: "Recent large-N studies of civil war conclude that inequality does not increase the risk of violent conflict. This article argues that such conclusions may be premature because these studies, which usually test the conflict potential of "vertical inequality" (i.e. income inequality between individuals), tend to neglect the group aspect of inequality. Case studies suggest that what matters for conflict is a concept closely linked to both economic and ethnic polarization: "horizontal inequalities", or inequalities that coincide with identity-based cleavages. Horizontal inequalities may enhance both grievances and group cohesion among the relatively deprived and thus facilitate mobilization for conflict..." (Posted 8/8/08)
  • In "Growth, Democracy, and Civil War," a working paper from SSRN, November 6, 2007, Antonio Ciccone and Markus Bruckner find that "lower international commodity price growth has no effect on civil war in democracies, but raises the likelihood of civil war incidence and onset in non-democracies." (Posted 9/9/08)
  • In "Ethnic Diversity, Civil War and Redistribution," SSRN, March 4, 2008, Thomas Tangeras uses game theory to model the relationship between ethnic diversity and civil war: "The risk of civil war is comparatively high at intermediate levels of ethnic diversity. It is low if either society is very homogeneous or very diverse." (Posted 12/29/08)
  • In "The Role of Natural Resources in Civil WarTowards Freedom," Global Policy Forum/Towards Freedom, May 3, 2010, Phumlani Majavu argues that "The plundering of natural resources by foreign governments and companies has contributed to nearly every [intrastate] conflict of the last thirty-years. Oil, gold, cobalt, water, timber and many more resources are used to prop up corrupt governments and support violent militias. The Security Council must develop the political will to draw links between natural resources and conflict, if peacekeeping and peace-building forces are to be successful." (Posted 5/10/10)
  • Book 1 Chapter 4 of Hugo Grotius' The Law of War and Peace, details the famous author's views of "War of Subjects Against Superiors". (Posted 9/17/11)

WAR CRIMINALS:

  • The complete text of the Rome Statute of the International Criminal Court is available here courtesy of the University of Minnesota's Human Rights Library. (Posted 5/15/07)
  • In "Justice in Times of Violence," European Journal of International Law, Volume 14, Number 2, Article 8, 2003, Frederic Megret examines the question of who should judge the war crimes of terrorists. On one hand, the "cosmopolitan" effort to try terrorists before the ICC is "unlikely to convince many and probably has more to do with liberalism's need to revitalize its programmatic promise in times that seem to profoundly challenge its globalizing logic." But on the other hand, "the notion, implemented in the United States, that terrorists should be judged by military commissions... betrays a regression of international law and can only be properly understood if viewed in the larger context of a crisis of liberalism." (Posted 5/15/07)
  • In "Donald Rumsfeld: The War Crimes Case," Jurist, November 9, 2006, Marjorie Cohn argues "that although Donald Rumsfeld is resigning as US Secretary of Defense, steps should be and will be taken to hold him accountable for breaches of international law and even war crimes sanctioned in Iraq and Guantanamo during his tenure..." (Posted 5/16/07)
  • Follow this link for a background brief on "The Case Against Rumsfeld, Gonzales, et. al. filed in Germany on November 14, 2006... a request for the German Federal Prosecutor to open an investigation and, ultimately, a criminal prosecution that will look into the responsibility of high-ranking U.S. officials for authorizing war crimes in the context of the so-called 'War on Terror. The complaint is brought on behalf of 12 torture victims -- 12 Iraqi citizens who were held at Abu Ghraib prison and one Guantanamo detainee -- and is being filed by the Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), the Republican Attorneys' Association (RAV) and others..." (Posted 5/15/07)
  • In "Jus Post Bellum: The Importance of War Crimes Trials," Perameters, August 2002, Davida Kellogg makes the case for post-war criminal justice on both retributive and forward-looking grounds: "Declining to do full justice for those who have been most grievously wronged by aggression, whether from without or within their national borders, leads to the perpetration of further moral injustice..." (Posted 5/15/07)
  • Ernesto Verdeja's chapter on "Institutional Responses to Genocide and Mass Atrocity," from Genocide, War Crimes and the West: History and Complicity, Adam Jones (ed.), Zed Books, 2004, "discusses the normative underpinnings of tribunals and truth commissions" and "identifies factors that affect the viability of commissions and tribunals, and emphasizes the importance of contextual constraints on their implementation and use." (Posted 5/15/07)
  • In "Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium," from Human Rights Advocacy Stories, Deena Hurwitz, Margaret L. Satterthwaite, Doug Ford, eds., Foundation Press, 2009, Hurwitz examines the state-specific politics of war crimes prosecution efforts. (Posted 12/21/08)
  • In "Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence," GWU Law School Public Law Research Paper No. 104, SSRN, August 26, 2004, Naomi Cahn "discusses the contemporary Congolese conflict, providing the context for the sexual violence that has occurred during the war" and "provides a fuller development of the principles that should guide any response to the sexual violence, surveying the possible approaches." (Posted 12/29/08)
  • In "The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'," Journal of International Criminal Law, Volume 7, 2009, John C. Dehn argues that this municipal common law invoked in Ex parte Quirin "was not an attempt to articulate a crime defined or made punishable by the law of nations or positive IHL [International Humanitarian Law], but rather to implement punishment permitted by it. Municipal law in that regard may, to a certain extent, go beyond the scope of IHL and criminalize conduct that is not made directly punishable by the laws of war." (Posted 5/13/09)
  • In "Coerced Moral Agents? Individual Responsibility for Military Service," The Journal of Political Philosophy, Volume 6, Number 2, 1998, David Mapel presents a careful critical examination of the responsibilities of soldiers, and would-be soldiers, for their participation in various forms of warfare. (Posted 11/27/09)
  • In "Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence," McGill Law Journal, Volume 52, Number 1, 2007, Martha Minow argues "that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command." (Posted 11/27/09)
  • In "The Blank-Prose Crime of Aggression," Yale Journal of International Law, Vol. 35, p. 71, 2010, Michael J. Glennon critically examines a proposed "amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court." The proposed amendment would, Glennon argues, "constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process." To receive regular notices about similar articles and related court cases, sign up for Robert Chesney's excellent national security law mailing list here. (Posted 12/23/09)
  • In "Humanities Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions," April 2011, Richard A. Wilson poses two questions: (1) "have international tribunals or commissions of inquiry actually provided significant insights into the origins and causes of political violence"? and (2) "how might states or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past"? (Posted 7/8/11)

JUS POST BELLUM:

  • Brian Orend's "Justice After War," Ethics & International Affairs, Volume 16, Issue 1, March 2002, presents a clear and fairly comprehensive overview of jus ad bellum considerations.
  • In "New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation," University of Toronto Law Journal, Volume 60, Number 3, Summer 2010, Nehal Bhuta examines "the difficulties and dilemmas of the idea of a jus post bellum of constitutional transformation in territories under foreign or international administration…at present, international law contains no such rules and that the law of self-determination provides no guidance."
  • In "'Jus Ad Bellum', 'Jus in Bello'…'Jus Post Bellum'?: Rethinking the Conception of the Law of Armed Forces," European Journal of International Law, Volume 17, Issue 5, Carsten Stahn argues that "the increasing interweaving of the concepts of intervention, armed conflict and peace-making in contemporary practice make it necessary to complement the classical rules of jus ad bellum and in jus in bello with a third branch of the law, namely rules and principles governing peace-making after conflict. The idea of a tripartite conception of armed force, including the concept of justice after war ('jus post bellum') has a long-established tradition in moral philosophy and legal theory."
  • In "What Will Jus Post Bellum Mean? Of New Wine and Old Bottles," Journal of Conflict and Security Law, Volume 14, Issue 2, 2009, authors Inger Osterdahl and Esther Van Zadel argue that "The idea of a framework of jus post bellum has recently gained momentum as a new category of law to be applied in the post-conflict phase, in order to reconstruct a stable and peaceful society after conflict. This framework of jus post bellum rules seems to be just what the world needs as the rules of jus ad bellum, which regulate the beginning of a war, and the rules of jus in bello, which regulate the conduct of the actual war, are not comprehensive enough to be of constructive help in the post-conflict phase."
  • In "Jus Post Bellum," Philosophy and Public Affairs, Volume 32, Issue 4, October 2004, Gary J. Bass argues that "the aftermath of war is crucial to the justice of the war itself. Political leaders often invoke postwar developments like bringing democracy or stability as part of justifying or condemning a war; but political theorists have not yet fully come to terms with which of these arguments are morally compelling. It is important to better theorize postwar justice—jus post bellum—for the sake of a more complete theory of just war."
  • In "Legislative Reform in Post Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law Making Power," McGill Law Journal, Volume 50, Kristen Boon examines "jus post bellum in light of the recent non-consensual legal reforms in Iraq, Kosovo, and East Timor to demonstrate how international bodies and coalitions are increasingly assuming legislative functions, legitimately and otherwise, in the context of their duties as interim administrators."
  • In "Just War and Post War Justice," Tobias Winright intends for "criteria of jus post bellum to enrich and to buttress the just war tradition—to give it more teeth, as Mennonite pacifist theologian John Howard Yoder called upon Christian just war proponents to do—by emphasizing that moral responsibility for war does not come to a halt when combat ends." (Posted 1/1/12)

GENERAL PEACE & WAR RELATED WEB RESOURCES:

  • Sound ethical judgments about warfare need to be based upon good information. For authoritative reporting on current issues of concern to everyone who cares about just and humane use of military force, check out the Human Rights Watch website.
  • To keep abreast of the legal news pertaining to the U.S. war against terrorism, the Human Rights First website is the place to go.
  • Looking for coverage that might counterbalance the biases of mainstream corporate media? Then the American Library Association's comprehensive list of alternative resources is the best place to start looking for the reports that you don't see on the nightly news and the arguments that you don't hear from TV pundits.
  • For exhaustive lists of political science & war-watching internet resources, check out Craig McKie's Research Resources for the Social Sciences. (Posted 7/18/04)
  • The Global Policy Forum "monitors policy making at the United Nations, promotes accountability of global decisions, educates and mobilizes for global citizen participation, and advocates on vital issues of international peace and justice." They provide numerous links to timely reports and to organizations that address international justice, security, disarmament and peacemaking problems. (Posted 7/20/04)
  • The website for The Crimes of War Project compiles text and photo journalism of the highest quality covering issues in international humanitarian law. (Posted 8/29/04)
  • The University of Minnesota's Human Rights Library hosts a number of valuable publications on War Crimes, Crimes against Humanity, Genocide, and Terrorism. (Posted 10/20/04)
  • Paul Martin Lester maintains a very useful website devoted to Ethics on the World Wide Web. JWT.com readers will be particularly interested in his Military Ethics page. (Posted 12/07/04)
  • Anup Shaw presents several interesting war-related pages, full of useful links, in the Geopolitics section of Globalissues.com. (Posted 12/09/04)
  • The Project on Defense Alternatives is an excellent and rapidly growing compendium of studies on military strategy. (Posted 11/23/05)
  • The National Security Archive at George Washington University is the best source for declassified U.S. documents obtained through the Freedom of Information Act. (Posted 12/05/05)

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